Best Legal Practices in Disciplining or Terminating an Employee

February 7, 2015

Best Legal Practices in Disciplining or Terminating an Employee

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A. Security of Employment
1. 1987 Constitutional mandate on full protection to labor
2. Labor laws, rules, and policies in favor of labor

B. Management Prerogative
1. Right of the employer to discipline an employee
2. Right of the employer to terminate an employee

C. Termination of Employment
1. By the Employer
2. By the Employee

D. Due Process
1.Substantial Due Process
i. Just Causes
ii. Authorized Causes
2. Procedural Due Process
i. 1st Written Notice
a. Personal service, preferred
b. Registered mail with return card
ii. Hearing/Opportunity to be Heard
a. Administrative Hearing
1) Employee allowed to have a lawyer
2) Process and documentation
b. When hearing not required: written reply by employee who already had the opportunity to be heard
iii. 2nd Written Notice
a. Personal service, preferred
b. Registered mail with return card

E. Labor Complaints
1. Cause of Action
i. Illegal Dismissal
a. Failure to observe substantial and/or procedural due process
b. Constructive resignation
ii. Monetary Claims
2. Consequences/Liabilities for both employer and concerned manager/s
i. Reinstatement
ii. When reinstatement not possible:
a. Doctrine of strained relations
b. Position abolished
iii. Separation pay if reinstatement not possible
iv. Payroll reinstatement
3. Payment of monetary claims
i. Running backwages
ii. 3-year prescription when applicable
4. Moral Damages
5. Exemplary Damages
6. Attorney’s Fees

F. Rules and Principles in Labor Cases
1. Burden of proof on the employer
i. To prove that dismissal was valid
ii. To prove that monetary claims were paid
iii. To prove that resignation was voluntary

G. Best Legal Practices: What employers and managers may do protect the business from labor complaints
1. Require signed resume or curriculum vitae
2. Complete company form
3. Conduct background check
4. Update company policies
5. Re-evaluate employment contract
6. Train Human Resource Staff
7. Observe proper documentation and safekeeping of 201 files/employee records
8. Design a flowchart on process for disciplinary actions, including the administrative hearing process
9. Keep and use templates for 1st and 2nd written notices
10. Document process for disciplinary action or termination
11. Observe proper conduct when dealing with SENA and the Labor Arbitrator
12. Be careful in writing company notice/s or press release/s related to ongoing labor complaint of an employee
13. Consider and evaluate all factors when deciding whether to settle or not
14. Execute and have the compromise agreement notarized when settlement has been agreed upon

H. Summary/Integration

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